When Does Ordinary Law Enforcement Become a “War on Crime?”

Corey Yung

Corey Rayburn Yung is an Associate Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

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25 Responses

  1. A.W. says:

    Well, this seems outside of your analysis, but you might consult Lincoln’s call for 70,000 troops at the start of the civil war. there the standard was when the problem was too large to be handled by ordinary criminal justice. i think terrorism fits that, but pervs? not so much.

  2. Orin Kerr says:

    Corey,

    To say that there is a “war on poverty” or “war on drugs” strikes me as a rhetorical move, not a substantive one. It means, roughly translated, that the government has decided to elevate this issue from “one among many” to one of its most important priorities. If I’m right about that, then I don’t think it makes sense to look at this issue by trying to identify when an actual “war” has started.

    It sounds to me like what you’re really doing is presenting an overview of governmental efforts to combat sex offense crimes. That sounds very valuable, but I don’t see how framing it as an inquiry into whether there is a “war” is helpful.

  3. Hi Orin,

    I agree that, for example, labeling the efforts to crackdown on drugs as a “war” has entirely a rhetorical move by the United States government (and Nixon specifically). However, where we depart is that I believe the war rhetoric subsequently shaped and determined legal reality. Elsewhere in my paper (in parts well beyond the scope of my blog post), I examine how criminal wars justify certain actions that would not be supportable as part of “ordinary” law enforcement. I touched on the subject above in my discussion of exception-making, but I think goes much further than that. As a society, we have become increasingly tolerant of collateral damage in our drug war because of the social acceptance of certain myths. Further, wars construct criminals as enemies of the state worthy of lesser consideration than otherwise might be afforded to them.

    I also contend that whether or not the rhetoric of “war” is deployed, the use of myth creation and disproportionate allocation of resources itself alters the criminal justice equation in ways different than normal law enforcement. To use a pretty easy example, look at the various judicial opinions upholding sex offender restrictions. They regularly cite recidivism statistics that are flat out wrong and accept media narratives that offenders are “incurable.” The myth has become the basis for law. The exception-making mentality of wars has also created a series of bizarre results. A non-criminal law example to me illustrates how normalized the fear of drugs has become in the law: Morse v. Frederick. The Court essentially created a drug speech exception to the First Amendment guarantee of free speech. Can that outcome really be explained without the underlying myths of the drug war? In the context of sex offenders, the overwhelming majority of courts that have reviewed challenges to SORNA have concluded that a criminal prosecution under a statute with a 10-year prison penalty is not “punitive” for Ex Post Facto purposes. Yet, because the laws involved a demonized group, courts don’t seem overly concerned with the effects on Ex Post Facto doctrine.

    So, when a “war” begins is notable because it often commits society to a series of legal results that are difficult to back away from. Even after substantial evidence has mounted about the failure of the drug war, America remains committed to the policy. And courts continue to make accomodations for the war in deciding cases.

    Corey

  4. Dave says:

    Hi Corey,

    These are all great points, and well worth making, especially since it’s hard to think of another population that has as few people willing to come to its aid as purported sex offenders (prisoners is likely the other example, as the social practice of making jokes about prison rape illustrates).

    I’m still not sure though (and this may be just a different take on Orin’s point) what the value is of invoking “war” as a category of criminal enforcement. What matters seems to be the form of enforcement itself–faulty use of statistics, excessive allocation of resources–and not whether this enforcement strategy fits into a predetermined rhetorical framework. Moreover, if you’re right and there already is a war on sex offenders, then that point seems to show that it doesn’t matter if we publicly refer to this kind of enforcement as a war or not; its character is independent of its rhetorical framing.

    Somewhat related, I wonder what it means that “war” is not always declared on crimes. Take LBJ’s war on poverty, for example. This suggests that “war” can’t have a meaning exclusively associated with criminal law, but may be something closer to Orin’s suggestion that it’s a move intended to prioritize particular issues.

  5. Hi Dave,

    I think there a few reasons to think that the label “war” is both appropriate and helpful. First, I think there are a lot of commonalities between the early drug war period and recent sex offender policy. In fact, a strong argument can be made that the governments of the United States have been harsher on sex offenders than they were on drug offenders in the late 60′s. Exploring those linkages led me to believe that sex offender policy is a “war” in the same way drug policy from that period was.

    Second, “war” encapsulates the categories of concern you describe pretty well. Just as a foreign war might be a “continuation of politics by another means,” I think a criminal war is law enforcement by another means. In the case of criminal wars, the attributes I posted about and to which you refer are the essential aspects of the conflict. I think many people have come to associate the drug war with the para-military SWAT teams of modern police forces. However, the drug war predated the advent of those specialized squads. What makes for a criminal war is not the use of military-like police – it is the myth creation, disproportionate allocation of resources, and exception-making.

    Third, the use of the rhetorical framing device of “war,” while not necessary for some of the effects I argue about, tends to super-charge those effects. Importantly, once a war begins and is labelled as such, it is difficult for the government to change course (although Nixon did declare victory in the war only a year after it had begun – “mission accomplished,” indeed). Part of the focus of my article is that the United States should deescalate the conflict before it becomes committed to a set of policies that might not be easily reversed. I want the government to stave off the formal declaration of war while also changing its substantive policy direction.

    As for your point about “war” rhetoric being used in other contexts (i.e., war on poverty), I haven’t figured out how that fits into the overall rubric. I’ve read through some dissertations in particular on war rhetoric generally, but I have come to think that other than the allocation of resources, there isn’t a common thread between criminal wars and other domestic “wars.” However, I’d be happy to here other thoughts on that issue as I haven’t come to any firm conclusions.

    Corey

  6. I had one more thought. To push back against the points of Dave and Orin, let’s remove the sex offenders from the discussion. Instead, I would ask, what makes the “War on Drugs” a “war” as opposed to a higher priority of U.S. criminal policy? If you think “war” is only a difference of rhetoric and not substance (which is what I take Orin’s point to be), I think that argument underestimates the way drug crime laws have had unique effects on our system. The fact that it is a “war” is why we have so many drug offenders in prison serving long sentences, why the counters of constitutional liberties have been structured to accomodate drug law enforcement, and why the government continues propoganda campaigns (did you know that if you buy pot, you are supporting terrorism?) to support its law enforcement efforts. If, however, you think “war” means something else, I’d be interested to hear alternate perspectives on why the “War on Drugs” is a “war.”

    Corey

  7. JP says:

    Hi everybody,

    In addition to the points made by Corey, I think the “war” framing in the context of drug prohibition has significantly contributed to public acceptance of the militarization of local law enforcement. I wonder whether Americans would have accepted SWAT teams (even in small cities/towns), raids on homes suspected of involvement in drug production or manufacture, multi-jurisdictional “task forces,” or local police equipped with full battle armor and weaponry–largely funded by the federal government.

    A declared “war” on sex offenses might have analogous results: more public acceptance of electronic surveillance, extensive monitoring (and elimination of privacy) of released prisoners, etc…

    At the same time, however, I would be surprised if such a “war” was declared, and I’m not sure it makes sense to claim a parallel without the actual rhetorical framing device.

  8. Orin Kerr says:

    Corey,

    I think there’s something else going on here, too: Arguing that something is a “war” taps into a lot of anger and opposition in academic communities (and some places elsewhere) about earlier government efforts that used the war label.

    Within mainstream academia, the phrase “war on drugs” is mentioned only to poke fun at Ronald Reagan. The “war on terror” is always used with scare quotes and is normally followed by ranting against George W. Bush. Thus, tagging the Government’s efforts as a “war” gives you a strong rhetorical point within the mainstream academic perspective: It immediately connects this to two examples of things that within academia (and certain pockets of American society) are widely considered examples of government failures and overreaching. As you put it, it “supercharges” the issue, at least to a subset of readers.

    I guess, then, the issue is whether you want to use rhetoric that “supercharges” the debate. I would think the problem in this area is that it is *too often* supercharged, and that we should be trying to be more analytical and less emotional. But then maybe you’re trying to fight fire with fire.

  9. Orin Kerr says:

    Corey,

    Wasn’t the original government “war on ___” Lyndon Johnson’s “war on poverty”? If I’m right, I wonder if you need to also consider how the framing of anti-poverty programs as a “war on poverty” altered how the anti-poverty programs of the late 1960s were administered.

    Also, to the extent you are focused on the “war” rhetoric more broadly, it might also be interesting too look at the United States Government’s insistence in the late 1940s and early 1950s that the Korean War was not a war, but rather a “police action.” Did that make it less of an actual war? Did the rhetoric change the nature of the Government’s behavior?

  10. Bruce Boyden says:

    We could throw in “War on Poverty” too into the war metaphor mix; I think that would mitigate the problem Orin is identifying to some extent.

    I think there is some useful work to be done on the use of the war metaphor, and whether its use has any effect on the behavior of actors within the legal system. That could include not only judges and prosecutors, but perhaps jurors and defendants as well — i.e., everyone whose views of the law matter. I would recommend Corey that you take a look at “In the Shadow of War” by Michael Sherry, a former professor of mine at Northwestern.

    But the line of inquiry I have in mind would study the effect of the war metaphor; I’m not sure you could extend it, as you’re proposing to, to an “undeclared war.” In that case, you not only do not have an actual war, you don’t even have war rhetoric. What do you have? I think I agree (on this point) with Orin: all you have is an increased enforcement priority.

  11. Bruce Boyden says:

    Jeez, I guess it took me more than 12 minutes to write my comment — gotta type faster.

  12. Hi JP, Orin, and Bruce,

    Thanks for the great feedback (and reference from Bruce). I realized I have created some confusion with the way I have referred to “war” rhetoric (which is certainly not helped by my continued use of quotes around the word “war”). Although the use of the word “war” in a declaration or otherwise is a significant component of war rhetoric, it is far from the entire picture. Other examples of such rhetoric include construction of “enemies,” describing targets as non-human, exaggerating threats through propoganda, and justifying why the normal rules of politics and criminal justice do not apply to the targeted class. So, while a formal declaration would be significant, it is not nearly essential for analyzing the war rhetoric regarding sex offenders. Instead war rhetoric includes a substantial portion of the myth creation that I talked about in my original post.

    Importantly, I think anything resembling a formal declaration might represent a point of no return. Thus, it is important to start thinking about a war while it is still in a nascent stage. Perhaps if the end results of the drug war were understood by more people in 1970, we wouldn’t have made a lot of mistakes that we have as a society.

    Orin, as to your point specifically regarding the almost joking use of the word “war,” I’m clearly coming at it from a different angle because I do believe the category of criminal wars exists (drawing significantly from rhetoric, political science, and communication scholars who have written on the subject). I don’t see my language as fighting fire with fire as much as I see it as recognizing a process that is underway. The war on terror is another tough case for me to analyze (and I have largely relegated it to footnotes so far) because it is extremely difficult to separate the hot wars from the criminal justice war. However, the War on Drugs seems to be a very different category than other high-priority law enforcement missions (if only by its incredible duration). I’m concerned that sex offender policy might be headed on the same course.

    Again, thanks to everyone for the wonderful responses.

    Corey

  13. Dave says:

    Corey,

    Just one more point (from me at least). I may not understand your claim well enough, but I wonder if there’s an inevitable contradiction afoot here.

    If the thesis is “The ‘war-on’ category is a rhetorical move that is problematic because it enables various substantive abuses”, then the sex offenders example seems to undermine the point because we’re already seeing those substantive abuses in the absence of formal invocations of the metaphor.

    But if the thesis is, “There is already a war on sex offenders, as evidenced by the fact that they suffer many of the same substantive abuses seen in, e.g., the war on drugs”, then this seems to undermine the point about rhetoric because there’s no causative relationship between invoking “war-on” rhetoric and the substantive abuses you’re concerned about.

    Of course, I may just be missing what the thesis is.

  14. JP says:

    Corey,

    I think war on terror parallel is actually a good one, and I hope you are able to elevate it from the footnotes. The difficulty you note-separating the criminal enforcement from the military aspect-is actually a good demonstration of the problems arising from framing a criminal enforcement issue as a war (or alternatively, framing a military action as a law enforcement matter).

    Possible effects of the criminal enforcement aspect of the war on terror include increased use in criminal prosecutions of: coerced evidence, sealed evidence, non-public trials, etc. This, of course, tends to suggest that some ideas popular among lawprofs are a bad idea (e.g., prosecuting Gitmo detainees in federal court). I believe Adrian Vermeule has argued that the use of normal law enforcement procedures in the war on terror is likely to make the federal judicial system more like military tribunals, even if it does result in more due process for terror suspects.

  15. Orin Kerr says:

    Thanks for the responses, Corey.

    One idea to frame this to make the points you want to make would be to compare the current attitudes and concerns about sex offenses to the period of the Mann Act. 100 years later, we know there was a ton of misunderstanding, and myths, and demonization, etc. You could argue that we’re now seeing those same attitudes and fears resurface in a slightly different setting, and we need to learn the lessons from a century ago. (To be clear, I’m not saying I agree with this — my own views are uncertain. But it seems a very close historical analogy to what you have in mind.)

  16. Hi again Dave, Orin, and JP,

    Thanks again. Dave, I don’t think there is any inevitable tension in my argument, but certainly one of the drawbacks to blogging about a longer theoretical piece is that it is difficult to cram everything into one coherent post. I think the basic explanation for why I think there is no tension is that the two aspects, rhetoric and substance, feed each other. The War on Drugs had some substance before rhetoric, which then escalated the substance, which led to stronger rhetoric, etc. To use a phrase from another field, we might think that all feedbacks are positive.

    I agree that the war on terror analogies could be helpful to my argument. However, they also open me to more controversy. If I cite a particular set of abuses brought about because of the war on terror, someone will easily point out that the abuse is due to the hot war and not the criminal war. Unless I develop some method of cleanly dividing criminal and non-criminal aspects of the war on terror, it is analogy that seems more problematic than helpful. I am, however, open to changing my mind on this if I can fine-tune the argument. I think your example illustrates why I might have to reconsider my position.

    Orin, I hadn’t considered the Mann Act even with its substantive similarity. It certainly is a statute with a strange and sordid history. Thanks.

    Corey

  17. George says:

    While what you are trying to get at is fairly clear, Corey, though the word “war” might be premature, although that is your point. It is more of a military psyops, which without mentioning it as such is what Christopher P. Wilson discusses to a degree in his Cop Knowledge: Police Power and the cultural Narrative in the Twentieth-Century America. “He takes us from Theodore Roosevelt’s year of reform with the 1890s NYPD to the current rise of ‘community police.” Interestingly enough, Roosevelt declared a war on crime in 1933, Google news says: Moley to Lead U. S. War on Crime DIRECTS ATTACK ON KIDNAPERS, GANGS OF THUGS Chicago Daily Tribune , Aug 3, 1933. But it isn’t as simple as war. In Creating Born Criminals Nichole Hahn Rafter discusses the wave of eugenics in U.S. history and she asks, How are born criminals made? The Napanoch Institution for the Defective Delinquents was the first civil commitment prison, 1921. But though there were some eugenicists who declared war, most were good people doing good things, simply wanting a better society.

    Many people do not realize the close connections American eugenicists had with Hitler and Nazi Germany, California eugenics being the most connected. Many celebrated Hitler and they were often normal, well-connected people. The documentary “Paragraph 175″ depicts well how Hitler started with the least politically powerful, and it wasn’t a declared war, not on his own people. While it may appear now that he waged war on his own people, starting with gays, perverts, communists, gypsies, anarchists and the disabled. It wasn’t war. It was a form of military psyops, the precursor to war, which may be what you are getting at.

  18. GregP says:

    Posted On Wednesday, November 5, 2008 at 1:25:00 PM by SOI (Sex Offender Issues):

    Some employers do have concerns about the public listing of employers’ addresses and DJJ has concerns about the registration of volunteer information. This brief notes the responses of six business/trade associations to a legislative request for information regarding their views about this requirement. The Associated Industries of Florida (AIF) stated that the “majority of the companies that responded stated that they do extensive background checks on employees before they are hired and have policies in place so that sex offenders and others with past criminal records cannot be offered employment.” However, these respondents did not think that publicly listing an employer’s name and address was a good idea. It is unclear how they viewed the listing of an employer’s address without the listing of an employer’s name.

  19. Terrence says:

    Dear Corey: We corresponded once before, with regard to my paper on sex offender legislation as unconstitutional “Bills of Attainder”. I was astounded to see this blog excerpt from your forthcoming paper. Knowing what I know of your previous legal arguments, I probably shouldn’t have been, but there it was. As you may recall, I had argued along much the same lines (though not nearly as specific as yourself) in the above-referenced paper. It is beyond gratifying to see a publicly-recognised legal mind of your stature come out in defense of persons like myself. My profoundest thanks for your coming to the defense of we who are the unwilling “pariahs” of the new century. One last thing–it might interest you to learn that in January this year I successfully brought forward (pro se) a new Federal case challenging the “internet identifier” prohibitions of Georgia’s S/O legislation. The case (White v. Baker et al. 1:09-cv-151-WSD, Northern District, Georgia) has recently been taken over by professional representation on my behalf, in the form of Bondurant, Mixson & Elmore LLP, and is presently stayed pending the end of the 2008-2009 legislative session of the Georgia General Assembly, which should take place on or about April the 3rd. I should be most interested to read your article on S/O persecution by government as an undeclared “war”. Please let me know when & how to obtain a copy.

  20. Terrence says:

    Dear Corey: We corresponded once before, with regard to my paper on sex offender legislation as unconstitutional “Bills of Attainder”. I was astounded to see this blog excerpt from your forthcoming paper. Knowing what I know of your previous legal arguments, I probably shouldn’t have been, but there it was. As you may recall, I had argued along much the same lines (though not nearly as specific as yourself) in the above-referenced paper. It is beyond gratifying to see a publicly-recognised legal mind of your stature come out in defense of persons like myself. My profoundest thanks for your coming to the defense of we who are the unwilling “pariahs” of the new century. One last thing–it might interest you to learn that in January this year I successfully brought forward (pro se) a new Federal case challenging the “internet identifier” prohibitions of Georgia’s S/O legislation. The case (White v. Baker et al. 1:09-cv-151-WSD, Northern District, Georgia) has recently been taken over by professional representation on my behalf, in the form of Bondurant, Mixson & Elmore LLP, and is presently stayed pending the end of the 2008-2009 legislative session of the Georgia General Assembly, which should take place on or about April the 3rd. I should be most interested to read your article on S/O persecution by government as an undeclared “war”. Please let me know when & how to obtain a copy.

  21. ML says:

    It’s interesting that legislators focus so much on punishing sex offenders after they have served their time. As Doug Berman pointed out, they probably wouldn’t impose lifetime driving restrictions on drunk drivers despite the high recidivism rates. Legislation is often the result of lobbying (MADD for drunk driving, NCMEC for sex offenders), but the alcohol lobby also fights against MADD; sex offenders have no one on there side.

  22. Daniel says:

    I will post here rather than Sex Crimes because this is where the debate seems to be happening. First, I think that CYR is making a point I have made for many years, and so I of course support it. The fundamental difficulty with Mr. Kerr’s approach is that is based on a concept that language describes reality instead of a conception that language makes (shapes, creates) reality. In the abstract, MLK is right when he said the constitution is just a piece of paper and that right to have meaning must be marched too. But without those words, there would be nothing to march to. What is a flag? A rag? Colored cloth? Or a deep and abiding symbol that many people throughout history have given their fortune and their very lives too. This is why Mr. Kerr’s point is disingenuous. It’s not the label that’s he’s uncomfortable with, it’s admitting the reality that the label refers to; when a war is already going on, failure to use that word is to deny reality.

    “It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle?” As I see it all CYR is doing is saying the same thing as Patrick Henry while Mr. Kerr wants to continue to play winking, blinking, and nod.

    “To say that there is a ‘war on poverty’ or ‘war on drugs’ strikes me as a rhetorical move, not a substantive one.” Put another way, the distinction made in that sentence is without human meaning. For every rhetorical move just is a substantive move.

  23. JP says:

    Corey,

    My concern with the use of “war” rhetoric is precisely that it becomes impossible to “cleanly divid[e] criminal and non-criminal aspects ….” This is true not only with the war on terror, but also the war on drugs.

    The U.S. military is extensively involved in drug interdiction in South & Central America, the Caribbean, Afghanistan, and elsewhere (including possibly Mexico in the near future). These State and DOD actions are generally characterized as police aid, but where is the line between international criminal enforcement and traditional war-making? And if that line is difficult to draw, where is the line drawn when it comes to the domestic drug war, particularly when local law enforcement and the military share information and tactics?

  24. m Andrea says:

    Marketing hype uses inflammatory terms all the time, and sometimes it’s so obvious that most people see through it. But sometimes it’s not, and that marketing hype does have an effect. So if the phrase “war on X” creates a problem for some people, then of course we should stop using it even in jest. Except the only person using that phrase in relation to pedophiles is you…

    Now that we’ve disposed of the label, what else are you complaining about? That life is too difficult for pedophiles? Gee, my heart bleeds…

    Now, if you were to complain about the out-of-purportion emphasis of stranger abductions and not enough emphasis on abuse committed by people known to the victim, only then would you actually have a point. The vast majority of kids who are abused, are abused by the men in their lives who are known to them, after all.

    Your concern about those horribly mistreated pedophiles appears creepy rape apologist to me.

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